Public Land and Resources Law Review
Volume 5
Regulatory Jurisdiction on Indian Reservations in
Montana
Mickale Carter
Follow this and additional works at: http://scholarship.law.umt.edu/plrlr
Recommended Citation
5 Pub. Land L. Rev. 147 (1984)
This Comment is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Public Land
and Resources Law Review by an authorized administrator of The Scholarly Forum @ Montana Law.
REGULATORY JURISDICTION ON INDIAN
RESERVATIONS IN MONTANA
Mickale Carter*
I.
INTRODUCTION
In Montana there are seven Indian reservation amounting to
8,347,185 acres,1 or a little over nine percent of the state's total land area.
Indian reservations are a unique form of federal reserve land. Unlike other
federal reserves, national forests and parks, for example, the purpose for
which Indian reservations were formed was not for a particular land use.
Indian reservations were set aside by the federal government for the "use
and occupancy" of the designated Indian tribes. Also very commonly,
treaties or agreements created the reservations, rather than the unilateral
action of Congress or the executive.
This unique situation has resulted in three governmental entities
having jurisdiction on Indian reservations: federal, state, and tribal.
Adjudicatory jurisdiction of each governmental entity, both civil and
criminal, has been hammered out in decisional and statutory law and
generally each recognizes the legitimate jurisdiction of the other. This,
however, is not the case in the area of regulation. When the tribe and the
state compete for regulatory authority, there is no bright line test for which
government should have jurisdiction, especially when either a non-Indian
or reservation property owned by a non-Indian is involved.
Due to the vast coal and oil reserves located within the exterior
boundaries of Montana's Indian reservations, 3 the determination of which
entity shall regulate mineral development on Indian reservations is
especially significant. For some time the state and federal governments
were virtually the only rivals, the state, of course, bowing to federal
authority. However, tribes are beginning to initiate regulatory schemes
* B.A., M.Ed., J.D., Montana.
1. Profile of the Montana Native Americans, Bureau of Indian Affairs, Billings area office,
Table J-2 at 189 (August 1974) (hereinafter Profile).
2. In 1964 Congress established the Public land Law Review Commission to recommend policy
for the "public lands" which were defined as all lands in federal ownership except Indian lands. See 43
U.S.C. §§ 1391-1400 (1964) (presently omitted from the code because of the termination of the
commission).
3. See. Richardson, What HappensAfter the Lease isSigned,AM. IND. J. II (February 1980).
This paper will not discuss the complex area of Indian water rights. For a comprehensive discussion see,
Hostyk, Who Controls the Water? The Emerging Balance Among Federal, State, and Indian
Jurisdictional Claims and Its Impact on Energy Development in the Upper Colorado and Upper
Missouri River Basins, 18 TuLsA L. REV. 1 (1982).
PUBLIC LAND LAW REVIEW
[Vol. 5
and assert jurisdiction.' Which governments, state and tribal, have power
to regulate, as well as when that power may be exercised to the exclusion of
the other government's regulation, must be determined.
In the past three years the United States Supreme Court has decided
several cases which, when read together, provide insight into this unsettled
area. In order to understand the significance of these decisions a general
understanding of Indian Law is necessary. The survey that follows will
include a discussion of the relationship between the federal government
and the tribes. An explanation of the varied types of land ownership on
Indian reservation will be followed by a discussion of state adjudicatory
jurisdiction over Indians and Indian Lands. This background discussion
will also include an overview of the jurisdiction of Indian tribes over nonIndians.
II.
FEDERAL TRIBAL RELATIONSHIP
A.
Indian Title to the Land
Practically all the real estate acquired by the United States since 1776
was not purchased from Napoleon or any other emperor or czar but from
the original Indian owners. What was acquired from Napoleon was not the
land, but the power to govern and to tax, similar to the power that the
United States gained with the acquisition of Puerto Rico or the Virgin
Islands. After paying Napoleon fifteen million dollars for the cession of
political authority over the Louisiana Purchase, the United States government proceeded to pay the Indian tribes of the ceded territory more than
twenty times this sum for the lands they possessed which they were willing
to sell.5
The payment for more than two million square miles purchased from
the Indians commonly took the form of a myriad of commodities, special
services, and tax exemptions. A conservative estimate would put the total
4. Under the Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 25
U.S.C. §§ 461-479 (1976), the tribes were given the power to adopt resource plans. See, e.g., Burley,
Indian Lands-An Industry Dilemma, 27B ROCKY MTN. MIN. L. INST. 1605 (1982). The Crow Tribe
now imposes a severance tax on the severance of coal from its trust lands. See, Crow Tribe of Indians v.
Montana, 650 F.2d 1104 (9th Cir. 1981), cert. denied, 103 S. Ct. 230 (1982). Also, the Indian Law
Clinic of the University of Montana School of Law is presently preparing a resource regulation code for
consideration by the Business Committee of the Rocky Boy's Reservation.
At least one commentator warns of the possibility of a shift in Indian policy, see infra text
accompanying notes 34-72 as resources become increasingly scarce. Scarcity will result in tribal
property becoming more coveted, and this may result in Congress "taking" tribal property. Newton,
The Judicial Role in Fifth Amendment Taking oflndian Land:An Analysis of the Sioux Nation Rule,
61 OR. L. REv. 245, 248 (1982).
5. Cohen, Original Indian Title, 42 MINN. L. REv. 28, 35 (1947).
1984]
REGULATORY JURISDICTION
price paid in excess of 800 million dollars.'
Notwithstanding the federal government's willingness to purchase
Indian interests in property, there remained until 1823 the question of the
exact nature of Indian title. In Johnsonv. McIntosh' Mr. Justice Marshall
devised a scheme not unlike that of a feudal system. 8 The federal
government had acquired title to all territory within its jurisdiction by the
right of either discovery or conquest. The Indian tribes, by virtue of their
native status, retained only the right of occupancy and use.' Thus the
United States held the legal title to the land while the Indians held title to
the beneficial use.
The federal government can extinguish the Indian title by treaty or by
war. However, the Indian title can not be conveyed to a private party
without the consent of the federal government. A non-consensual private
sale of Indian lands gives the purchaser no valid title against the sovereign,
the United States government. 10
In 1938 the Supreme Court determined the scope of Indian title. The
Court declared: "For all practical purposes the tribe owned the land ...
The right of perpetual and exclusive occupancy of the land is not less value
than full title in fee. . .
."I
In that case the Court held that the Indian
right to use and occupancy of the land included the ownership of the timber
and mineral resources thereon. This holding was reiterated in United
States v. Klamath and Moadoc Tribes ofIndians,1 2 with respect to Indian
right to timber. As a result of these decisions, one commentator concluded
that "the two decisions delivered a death blow to the argument that
aboriginal ownership extends only to the products of the soil actually
utilized in the stone age culture of the Indian tribes." '
The Supreme Court has not maintained its stance that tribes own the
reservation resources. In a recent case the Supreme Court, although
acknowledging the beneficial interest of the tribe, stated that the United
States government owns the timber on Indian reservations. 1 ' It is noteworthy that the Court continues to recognize tribal interest in nontraditional
uses of resources, in this case, the harvesting of timber.
6. Id. at 35-36.
7. 21 U.S. (8 Wheat) 543 (1823).
8. Cohen, supra note 5, at 49.
9. Johnson v. McIntosh, 21 U.S. at 572-592. See also Worchester v. Georgia, 31 U.S. (6 Pet.)
515, 544 (1832).
10. Johnson v. McIntosh, 21 U.S. at 572-592.
11. United States v. Shoshone Tribe, 304 U.S. I 11, 116 (1938). "The lower court did not err in
holding that the right of the Shoshone Tribe included the timber and minerals within the reservation."
Id. at 118.
12. 304 U.S. 119 (1938).
13. Cohen, supra note 5, at 55.
14. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 138 (1980).
PUBLIC LAND LAW REVIEW
B.
[Vol. 5
Treaties
As white settlers encroached upon Indian country, treaties were used
to remove Indian tribes from the path of ever expanding western civilization.1 In exchange for their right of occupancy and use of aboriginal lands
and peace, the federal government, pursuant to the provisions of treaties or
executive orders, set aside parcels of land for the use and occupancy of the
various Indian tribes. Some reservations were carved out of the tribe's
aboriginal land, while others were created out of federal land which the
tribe had not previously occupied. Along with the reservation of lands, the
treaties promised the tribes other rights. Varying from treaty to treaty and
from order to order, these rights included educational, health care, and
general assistance benefits, along with the promise of agricultural and
other technical assistance.16
Treaties are considered to be the supreme law of the land.1 7 Although
created by negotiation, treaty rights can be unilaterally abrogated by
Congress. This power is based on the premise that treaties represent the
political policy of the nation at the time they were made. As circumstances
and thus policies change, Congress may then change the provisions of the
treaty so that they will be in line with present policy.18
Much has been written concerning the unfair bargaining position of
the Indian tribes19 and the frequency of breach by the United States
government.2 0 In light of this unfairness, the Supreme Court has recognized that Indian treaties are not ordinary contracts. 21 "The Indian nations
did not seek out the United States and agree upon an exchange of lands in
an arm's-length transaction. Rather treaties were imposed upon them and
they had no choice but to consent."2 "The United States, as the party with
the presumptively superior negotiating skills and superior knowledge of the
language in which the treaty is recorded, has a responsibility to avoid
taking advantage of the other side."' s
15.
Wilkinson & Volkman, JudicialReview of Indian Treaty Abrogation: "As Long as Water
Flows, or Grass Grows Upon the Earth."--How Long is That?, 63 CAL. L. REV. 601, 609 (1975).
16. Id. at 602-03.
17. U.S. CONST. art. VI.
18. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This power, however, is not without
restriction. For instance, treaty rights cannot be taken without just compensation. United States v.
Creek Nation, 295 U.S. 103 (1935). Also there must be a clear expression of congressional intent to
abrogate or modify the treaty. Menominee Tribe v. United States, 391 U.S. 404, 413 (1968).
19. See, e.g., Wilkinson & Volkman, supra note 15, at 608-12; F. COHEN, HANDBOOK OF
FEDERAL INDIAN LAW 62-63 (1982).
20. F. COHEN, supra note 19, at 63-64.
21.
22.
23.
76 (1979).
See D. GETCHES, D. ROSENFELT, & C. WILKINSON, FEDERAL INDIAN LAW 200-04 (1979).
Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31 (1970).
Washington v. Washington State Commercial Passenger Vessel Ass'n, 443 U.S. 658, 675-
1984]
REGULATORY JURISDICTION
Recognizing the unequal bargaining position of the tribes, the courts
have developed three canons of treaty interpretation:
must be resolved in favor of the
(1) Ambiguous expressions
24
Indian parties concerned;
(2) Indian treaties must be interpreted as the Indians themselves
would have understood them;25 and
(3) Indian treaties must be liberally construed in favor of the
Indians."
C.
The Trust Relationship
Judicial interpretation of treaties has resulted in the formulation of a
trust relationship between the United States and the American Indian. Mr.
Chief Justice Marshall in Cherokee Nation v. Georgia,2' concluded that
Indian tribes are "domestic dependent nations." This conclusion, precipitated from the nature of the dual title to the land discussed in Johnsonv.
McIntosh,'8 the original sovereignty of the Indian tribes, and their
subsequent dependence upon the United States government for protection.
In Mr. Justice Marshall's analysis, "[t]heir relation to the United States
resembles that of a ward to his guardians. 2 9
This first judicial formulation of the trust relationship has been
expanded. The duty of the federal government, in conjunction with the
broad power of Congress over Indian affairs, 0 ha been characterized as
"moral obligations of the highest responsibility and trust."3 1 However, it
should be remembered that Congress, even with this trust responsibility,
can confiscate aboriginal Indian land by "merely transmut[ing] the
property from land to money. "32
24. McClanahan v. State Tax Comm'n, 411 U.S. 164, 174 (1973).
25. Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970).
26. Id. See Wilkinson & Volkman, supra note 15, at 617.
27. 30 U.S. (5Pet.) 1, 17 (1831).
28. 21 U.S. (8 Wheat) 543 (1823). See supra text accompanying notes 7-10.
29. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) at 17.
30. See infra text accompanying notes 33-36.
31. Seminole Nation v. United States, 316 U.S. 286, 297 (1942). See also Wilkinson &
Volkman, supra note 15, at 616 n.66.
32. Three Tribes of Fort Berthold Reservation v. United States, 390 F.2d 686, 691 (Ct. Cl.
1968): "Where Congress makes a good faith effort to give the Indians the full value of the land and thus
merely transmutes the property from land to money, there is no taking. This is a mere substitution of
assets or change of form and isa traditional function of a trustee." The Supreme Court recently applied
this "good faith test" in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980), in which It
found a taking of tribal property for which the Sioux Nation must be paid. For a discussion of the Sioux
Nation Rule, see Newton, The Judicial Role in Fifth Amendment Takings of Indian Land: An
Analysis of the Sioux Nation Rule, 61 OR. L. REV.. 245 (1982).
But seeTee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (no compensation for taking of
aboriginal lands). The Indian Claims Commission Act of 1946,25 U.S.C. § 70-70v (1976), established
a commission to adjudicate Indian claims. Takings of unrecognized Indian title have been found not to
PUBLIC LAND LAW REVIEW
D.
[Vol. 5
Plenary Powers of Congress
Congress has plenary power over Indian affairs. Congressional
enactments, supplemented by treaties and federal court decisions deter-
mine which governmental unit, tribal, state, or federal has jurisdiction in
each circumstance. This congressional power follows from the trust
relationship. The duty to care for Indians carries with it the power to
legislate for them.33 Settled in the first years of this century, the Supreme
Court no longer questions congressional power to control and manage
Indian land. 4
Congress' plenary power also finds support in the Constitution.
Although Indians are mentioned in the Constitution three times," only the
Commerce Clause specifically grants Congress power over Indians. Con-
gress is authorized to "regulate commerce with foreign Nations and among
the several states, and with the Indian Tribes." '
E.
Indian Policy
Indian Law is a reflection of national Indian policy, which has
undergone numerous shifts in direction in the course of American
history.' The present policy, 1968 to the present, is one of encouraging
tribal self-determination. It is premised on the notion that Indian tribes are
basic governmental units. Consequently, during the 1970's and 1980's
tribal governments have been affirmatively strengthened.3 8
In April of 1974 Congress declared its policy as it relates to the
development of Indian resources. The Indian Financing Act 3 9 states: "It is
hereby declared to be the policy of Congress to provide capital on a
reimbursable basis to help develop and utilize Indian resources, both
physical and human, to the point where the Indian will fully exercise
give rise to liability for interest. See Alcea Band of Tillamooks v. United States, 341 U.S. 48 (1951).
Also, commission awards are valued as of the date of the taking. Interest is allowed on only a small class
of claims. See Friedman, Interest on Indian Claims: Judicial Protection of the Fisc, 5 VAL. U.L. REV.
26 (1970).
33. United States v. Kagama, 118 U.S. 375 (1886).
34. See, e.g., Lone Wolfv. Hitchcock, 187 U.S. 553 (1903) (power to allot Indian land without
tribal consent); Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) (power to enter into oil and gas
leases on Indian land); Pine River Logging Co. v. United States, 186 U.S. 279 (1902) (power to arrange
sale of timber).
35. Article one and the fourteenth amendment exclude "Indians not taxed" from the count for
apportioning taxes and representatives to Congress among the states. U.S. CONST. art. I, § 2, cl. 3,
amend. XIV, § 2.
36. U.S. CONST. art. I, § 2, cl. 3. See generally F. COHEN, supra note 19, at 207.
37. For a discussion of changes in Indian policy see F. COHEN, supra note 19, at 50-180.
38. See F. COHEN, supra note 19, at 180-206; T. TAYLOR, THE STATES AND THEIR INDIAN
CITIZENS 160-67 (1972); S. TAYLOR, A HISTORY OF INDIAN POLICIES 217-279 (1973); Wilkinson &
Biggs. The Evolution of the Termination Policy, 5 AM. IND. L. REV. 139, 163-65 (1977).
39. 25 U.S.C. §§ 1451-1543 (1976).
1984]
REGULATORY JURISDICTION
responsibility for the utilization and management of their own resources
.
.
. " This policy is consistent with the Supreme Court's interpretation,
one year earlier, of the congressional policy and intent behind the
enactment of the Indian Reorganization Act of 193440 The Supreme
Court stated that Congress intended to "rehabilitate the Indian economic
life and to give him a chance to develop the initiative destroyed by a century
'
of oppression and paternalism."41
F. Tribal Sovereignty
In an early case involving state power to regulate within an Indian
reservation, Mr. Chief Justice Marshall looked behind the treaties and
Indian Trade and Intercourse Acts to discern a congressional policy to
safeguard tribal self government as well as land ownership. 42 Holding that
the state was precluded from regulating activities within the reservation by
the Supremacy Clause,'4 he defined Indian tribal status as "distinct
political communities, having territorial boundaries, within which their
authority is exclusive, and having a right to all the lands within those
boundaries, which is not only acknowledged, but guaranteed by the United
States.""
This notion of inherent sovereignty, shored up by preemption concepts,'45 has altered somewhat through the passage of time and changes in
congressional policy toward Indians. Presently, the Supreme Court does
not regard tribal sovereignty as a resolution of the issue of whether the state
has jurisdiction to regulate within the reservation. Rather, it considers
tribal sovereignty as a "backdrop against which the applicable treaties and
federal statutes must be read.""
In 1978 the Supreme Court further modified tribal sovereignty
concepts. It added the new consideration of the federal-tribal relationships
and held that tribes only have those powers which are not inconsistent with
their dependent status.' However, the Court continues to recognize the
essence of inherent sovereignty. 48 The Supreme Court in 1978 stated that
40. 25 U.S.C. §§ 461-479 (1976).
41. Mescalero ApacheTibev. Jones, 411 U.S. 145,152 (1973) (quoting, H.R. REP. No. 1844,
73d Cong., 2d Sess. 1 (1934)).
42. Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
43. U.S. Const. art. VI, cl.
2.
44. Worchester v. Georgia, 31 U.S. at 557.
45. See infra text accompanying notes 124-130.
46.
McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 (1973).
47.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). See also Barsh & Henderson,
The Betrayal. Oliphantv. Suquamish IndianTribe andthe Huntingof the Shark, 63 MINN. L. REV.
609,637 (1979); Note, Indians-Jurisdiction-Tribal
Courts Take JurisdictionOver Non-Indian
Offenders-Oliphant v. Suquamish Indian Tribe, 537 Wis. L. REV. 569 (1979).
48. United States v. Wheeler, 435 U.S. 313, 328 (1978): "But our cases recognize that the
PUBLIC LAND LAW REVIEW
[Vol. 5
jurisdiction which is not delegated to state or federal courts remains with
the tribe.49
The Supreme Court in White Mountain Apache Tribe v. Bracker, °
aptly described the complexity of the present status of tribes:
The status of the tribes has been described as "'an anomalous
one and of complex character,' "for despite their partial assimilation into American culture, the tribes have retained" 'a semiindependent position . . . not as States, not as nations, not as
possessed of the full attributes of sovereignty, but as separate
people, with the power of regulating their internal and social
relations, and thus far not brought under the laws of the Union or
of the State within whose limits they resided.' "'I
III.
LAND OWNERSHIP ON INDIAN RESERVATIONS
There are four kinds of land ownership within the reservations: land
held in trust by the federal government for the tribe; land held in trust by
the federal government for the individual tribal member; land owned in fee
by a tribal member, or tribe; and land owned in fee by a non-member which
includes non-Indians. For the purpose of determining power to regulate
two categories are important: Indian land and non-Indian land. Indian
land includes tribal and individual trust land as well as land on the
reservation held in fee by a tribal member. All other land on the reservation
is non-Indian land.
The creation of the reservation carried forward the separation of title
to the property within the reservation. The federal government held bare
legal title and the tribe held the beneficial title. The federal government
held the land in trust for the use and occupancy of the respective tribes.",
With a change in Indian policy, Congress passed the General Allotment
(Dawes) Act of 18 8 7 .11 Pursuant to this act, the land on the affected
reservations was divided into small farm-sized tracts to be held by
individual Indians. The land was to remain in trust for a certain time,
usually for 25 years, and then fee simple title would vest in the individual
Indian, taking the land out of trust.
Although land held in trust cannot be transferred to a private party
without the consent of the federal government, 4 land held by the
Indian tribes have not given up their full sovereignty."
49. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
50. 443 U.S. 136 (1980).
51. Id. at 142 (citing McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 (1973)
which quoted United States v. Kagama, 118 U.S. 375, 381-82 (1886)).
52. See supra text accompanying notes 7-10.
53. 25 U.S.C. §§ 331-358 (1983).
54. Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823).
REGULATORY JURISDICTION
19841
individual Indian in fee can be, and was, readily transferred. Congress
encouraged further purchase of reservation land by non-Indians. In 1888
and for several years thereafter, Congress provided for the sale of "surplus
lands" on various reservations. Surplus lands were lands deemed by
Congress to not be needed for allotments.55 As a result of this policy and the
Indian sale or loss of land that was no longer in trust status, the total
amount of Indian held land declined from 138 million acres in 1887 to 48
million in 1934.56
Another change in policy ended the allotment era. With the passage of
the 1934 Indian Reorganization (Wheeler-Howard) Act, 57 all surplus land
not yet sold was placed in trust for the benefit of the tribe. It also expressly
ended the policy of allotment,58 and the trust status of trust lands within the
reservation was extended indefinitely.
There was initially some question as to whether the ownership of lands
within the reservation by non-Indianspro tantoterminated the reservation
with respect to that land. It was argued that this alienated land was no
longer within the boundaries of the reservation. This issue was finally
settled in Mattz v. Arnett." The Mattz Court determined that the nonIndian purchase did not terminate the reservation status of the land.
The determinative factor, the Court stated, is whether Congress
intended to terminate the reservation. Congressional intent must be clearly
expressed when Indians are involved. The Mattz Court then established
the standard for determining when congressional intent is clearly expressed. The intent, in this case to terminate, must either be "expressed on
the face of the Act, or be clear from the surrounding circumstances and
legislative history.' ' 0
On Montana's reservations, as of 1973, over one third of the land
within the exterior boundaries of the reservations was owned by nonIndians, leaving about two thirds in trust. The proportion of types of
ownership varies greatly from reservation to reservation. On the Rocky
Boy's Reservation, for instance, virtually all the land is in trust, whereas, on
the Fort Peck Reservation only about one half is in trust.61
A. Montana's Disclaimer
A Congressional Enabling Act, passed February 22, 1889, provided
55.
56.
57.
58.
59.
60.
Kootenai
61.
25 U.S.C. § 348 (1983).
F. COHEII, supra noto 19, at 138.
25 U.S.C. §§ 461-479 (1976). See 25 U.S.C. § 463 (1976).
25 U.S.C. § 461 (1976).
412 U.S. 481 (1973).
Id. at 505. For an example of the application of this standard, see Confederated Salish and
Tribes v. Namen, 665 F.2d 951 (9th Cir. 1981), cert. denied, 103 S. Ct. 314 (1982).
Profile, supra note 1, Table J-2 at 189.
156
PUBLIC LAND LAW REVIEW
[Vol. 5
for the establishment of the States of Montana, North Dakota, South
Dakota, and Washington. 2 Section 4 of Montana's Enabling Act reads in
pertinent part:
And said convention shall provide, by ordinances irrevocable
without the consent of the United States and the people of said
states: ....
Second. That the people inhabiting said proposed states do agree
and declare that they forever disclaim all right and title to the
unappropriated public lands lying within the boundaries thereof,
and to all lands lying within said limits owned or held by any
Indian or Indian tribes; and that until the title thereto shall have
been extinguished by the United States, and the said Indian lands
shall remain under the absolute jurisdiction and control of the
Congress of the United States ....
Montana adopted the identical language in Montana's 1889 constitution.6
When Montana ratified a new constitution in 1972 this provision was
therein incorporated:
All provisions of the enabling act of Congress.
.
.including the
agreement and declaration that all land owned or held by any
Indian or Indian tribe shall remain under the absolute jurisdiction and control of the United States continue in full force and
effect until revoked by the consent of the United States and the
people of Montana. 4
Although one might argue that the disclaimer precludes state
personal jurisdiction over Indians, Montana's supreme court has held that
this disclaimer is only applicable where the issue concerns Indian lands. It
applies only to "proprietary interest therein and control thereof."65 This
pronouncement seems to preclude Montana's regulation of resource
development on trust lands. However, the disclaimer is not applicable to
land on the reservation held in fee by non-Indians.
Montana's disclaimer, nevertheless, has received little attention in the
federal courts. It was not discussed at all in a recent case which considered
Montana's power to tax the severance of coal from lands with mineral
rights held in trust for the Crow Tribe.6 6 The Supreme Court made short
reference to the disclaimer in a case which dealt with state adjudication of
62. 25 Stat. 676. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering,
P.C., 321 N.W.2d 510, 511 (N.D. 1982), cert. granted, 103 S.Ct. 1872 (1983), argued (Nov. 29,
1983).
63. MONT. CONST. ORD. no. 1, § 2 (1889).
64. MONT. CONST. art. I.
65. Iron Bear v. District Court, 162 Mont. 335, 341, 512 P.2d 1292, 1296 (1973).
66. Crow Tribe of Indians v. Montana, 650 F.2d 1104 (9th Cir. 1981), cert. denied, 103 S. Ct.
230 (1982).
1984]
REGULATORY JURISDICTION
Indian water rights, but quickly dismissed its significance67 in the context
of adjudicatory power over the quantification of reserved water rights.
IV.
AJUDICATORY JURISDICTION
The general rule is that adjudicatory jurisdiction not delegated by
Congress, in its plenary capacity, to state or federal courts, remains with
the tribe.68 The relevant determination, then, is whether Congress has
delegated the jurisdiction. Although stated simply, the application is
rather complicated. Which court has jurisdiction in criminal matters is
more certain than in civil matters. In both, the factors of situs and person
are essential. Which court has jurisdiction depends upon: (1) whether the
transaction or crime occurred on or off the reservation; and (2) whether an
Indians only, non-Indians only, or individuals of both classes were
involved.69
In 1953 Congress created a method, P.L. 280, whereby states could
unilaterally assume jurisdiction over both civil matters and criminal
activities on reservations no matter who the parties are.7 0 The Indian Civil
Rights Act of 196871 limited this practice by allowing state assumption of
jurisdicti6n only if tribal consent is manifested by a majority vote of the
enrolled tribal members. This requirement was strictly construed in
Kennerly v. District Court.2
Montana did not acquire wholesale adjudicatory jurisdiction pursuant to the 1953 act. However, the Confederated Salish and Kootenai Tribe
and the State of Montana have agreed, pursuant to P.L. 280, to have
concurrent jurisdiction in all criminal matters and in eight enumerated
areas.7 3 There are no other tribal-state jurisdiction agreements. The
discussion that follows is only applicable to states, like Montana, that did
67.
Arizona v. San Carlos Apache Tribe of Arizona, 103 S. Ct. 3201, 3212 (1983):
The parties in this case have engaged in a vigorous debate as to the exact meaning and
significance of the Arizona and Montana Enabling Act (footnote omitted). We need not
resolve that debate, however, nor need we resort to the more'general doctrines that have
developed to chart the limits of state authority over Indians, because we are convinced that
whatever limitations the Enabling Acts or federal policy may have originally placed on state
court jurisdiction over Indian water rights, those limitations were removed by the
McCarran Amendment.
68. See Oliphant v. Suquamish Indian Tribe, 438 U.S. 191 (1978).
69.
W. CANBY, AMERICAN INDIAN LAW IN A NUTSHELL 84-156 (1981).
70. 18 U.S.C. § 1162 (1976). Congress granted the six mandatory P.L. 280 qtates (Alaska,
California, Minnesota, Nebraska, Oregon and Wisconsin) civil and criminal jurisdiction over Indian
reservations within the state's boundaries. The other states, optional states, were permitted to acquire
similar jurisdiction.
71. See 18 U.S.C. §§ 1321, 1322, 1326 (1976).
72.
400 U.S. 423 (1971).
73. MONT. CODE ANN. §§ 2-1-301 to -307 (1983); Confederated Salish and Kootenai Tribes
Law and Order Code, Ch. 1, § 2, (3) and (4).
PUBLIC LAND LAW REVIEW
[Vol. 5
not assume tribal jurisdiction.
A.
Criminal Jurisdiction
States have jurisdiction over both Indians and non-Indians who
violate state law in the state but off the reservation. Federal statutes
determine jurisdiction when the offense is committed on a reservation.74
Although the statutes delegate jurisdiction to either federal or tribal
courts, the Supreme Court has made an exception. When both the accused
and the victim are non-Indians, or a non-Indian commits a victimless
crime, the state has jurisdiction even though the situs of the crime was on
the reservation."
The Supreme Court later determined that when a non-Indian commits a crime on a reservation and an Indian is involved, the tribe does not
have jurisdiction. Although Congress has never specifically denied tribal
criminal jurisdiction over non-Indians, the Court reasoned, such jurisdiction would be inconsistent with the tribe's dependent status.76 The Court
determined that the tribe's power to restrict the personal liberty of United
States citizens conflicts with the federal government's overriding interest
in protecting its citizens "from unwarranted intrusions on their personal
liberty.""7
The Supreme Court, in a case that soon followed, clarified what
criminal jurisdiction is consistent with the tribe's dependent status. The
tribe, as an aspect of retained sovereignty, has the power to prosecute its
members for tribal offenses. 8
B.
Civil Jurisdiction
Determination of jurisdiction over civil matters is more complicated.
As in criminal jurisdiction, the state has jurisdiction if the claim arises in
the state, off the reservation." In 1832 the Supreme Court indicated the
general rule that when both of the parties are Indians and the claim arises
on the reservation, the tribe has exclusive jurisdiction."0 Both state and
74. 18 U.S.C. §§ 1152, 1153 (1976).
75. United States v. McBratney, 104 U.S. 621 (1882) (non-disclaimer state); Draper v. United
States, 164 U.S. 240 (1896) (disclaimer state). In both McBratney and Drapera non-Indian killed a
non-Indian on a reservation. Because only non-Indians are involved in a victimless crime states have
jurisdiction by this same authority. W. CANBY, supra note 69, at 126.
76. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
77. Id. at 210.
78. United States v. Wheeler, 435 U.S. 313, 322 (1978). The sovereign power of a tribe to
prosecute its members for tribal offenses clearly does not fall within the part of sovereignty which the
Indians implicitly lost by virtue of their dependent status.
79. International Shoe v. Washington, 326 U.S. 319 (1945).
80. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). "The Indian nations have always been
considered as distinct, independent political communities." Id. at 559. "The Cherokee nation, then, is a
1984]
REGULATORY JURISDICTION
tribal courts may claim jurisdiction when the parties are not from the same
class, i.e., one is an Indian and one is a non-Indian, and the situs of the
activity was on the reservation.
The Court created a test such that when certain conditions are
present, state jurisdiction over claims arising on the reservation is pre-eluded. This test has been labeled the Williams or the infringement test.
The infringement test was conceived by the Supreme Court in
Williams v. Lee.8" A non-Indian attempted to sue an Indian in state court
for a claim which arose on the Navajo reservation. A unanimous Court
ruled that the state court had no jurisdiction. The Court reasoned that
"absent governing Acts of Congress, the question has always been whether
the state action infringes on the right of reservation Indians to make their
own laws and be governed by them. 82 State jurisdiction would only be
allowed where "essential tribal relations were not involved and where the
rights of Indians would not be jeopardized." 83 In so stating, the Court
recognized the concept of inherent tribal sovereignty.
The Supreme Court has indicated that the Williams test deals
principally with situations involving non-Indians. In that case both the
tribe and the state could fairly claim an interest in asserting jurisdiction.
The Williams test, It stated, was designed to resolve this conflict, allowing
the state to protect its interests up to the point where tribal self-government
would be affected. 84 When only Indians are involved a lesser state impact
will preclude state assumption of jurisdiction.85
The Montana Supreme Court created a three prong test to determine
whether the Williams test has been met and thus preclude state jurisdiction. The court directed Montana's district courts to not assume subject
matter jurisdiction without first determining:
(1) whether the federal treaties and statutes applicable have
preempted state jurisdiction;
(2) whether the exercise of state jurisdiction would interfere with
reservation self-government; and
(3) whether the Tribal court is currently exercising jurisdiction
or has exercised jurisdiction in such a matter as to preempt state
jurisdiction.86
distinct community occupying its own territory, with boundaries accurately described, in which the
laws of Georgia can have no force. . . ...Id. at 561. The Montana Supreme Court has a three prong
test it uses before it will preclude state jurisdiction. See infra text accompanying notes 86-89.
81. 358 U.S. 217 (1959).
82. Id. at 221.
83. Id. at 219.
84. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 179-80 (1973).
85. Fisher v. District Court, 424 U.S. 382, 386 (1976): "[A]t best the same standard (the
infringement test) must be met before state courts can exercise jurisdiction."
86. Iron Bear i;. District Court, 162 Mont. 335, 346, 519 P.2d 1292, 1299 (1973).
PUBLIC LAND LAW REVIEW
[Vol. 5
The first and second prongs seem to be a restatement of the Williams
test. The last prong seems to be more an interpretation of the second prong
than a new element. Pursuant to this test, tribal self-government is
infringed upon by the state assumption of jurisdiction only if the tribe is
presently exercising or has exercised jurisdiction in that specific subject
matter.
In applying this test, known as the Iron Bear test, the Montana
Supreme Court will not find an infringement unless the tribal government
87
has adopted specific procedures dealing with the subject matter involved.
This approach does not give the tribe the option of deciding to not legislate
in a particular area, i.e., a tribe will not be allowed to legislate by default.
This rationale seriously erodes the concept of tribal sovereignty.
The Supreme Court, in 1981, adopted a similar approach in a
regulation case. In Montana v. United States,8 the Crow Tribe claimed
jurisdiction to regulate non-Indian hunting and fishing on non-Indian land.
In ruling that the tribe lacked this jurisdiction, the Court held that the tribe
had lost its regulatory interest because of the tribe's long standing
acquiescence to nearly exclusive state regulation of such activities. 89
Although tribal courts may claim jurisdiction over all civil actions
arising on the reservation,9 some tribal courts only claim jurisdiction when
the defendant is a member of the tribe.91 The Montana Supreme Court has
a long standing policy that the state courts are open to all citizens,
including Indians, so the Indian plaintiff has a forum in Montana's courts
87. Bad Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893 (1973), cert. denied, 419 U.S. 847
(1974) (divorce of two tribal members). It should be pointed out that regulatory jurisdiction on
reservations is a federal question. A tribe can challenge a state's jurisdiction to enforce its regulations
within the reservation in federal court. 28 U.S.C. § 1362 (1976). See, e.g., Crow Tribe of Indians v.
Montana, 650 F.2d 1104 (9th Cir. 1981), cert. denied, 103 S. Ct. 230 (1982).
88. 450 U.S. 544 (1980).
89. Id. at 566.
90. In Kennerly, 400 U.S. 423, 427 (1971) the Supreme Court discussed state extension of
jurisdiction over action "by or against Indians arising in Indian Country." The tribe implicitly has
jurisdiction. The issue addressed in Kennerly is when the state has concurrent jurisdiction. In Williams
v. Lee, 358 U.S. 217 (1959), the Supreme Court determined that when the defendant is an Indian and
the cause of action arose on the reservation the tribe has exclusive jurisdiction. In a recent Ninth
Circuit decision that court expanded this holding stating: "We have recognized that the tribal court is
generally the exclusive forum for the adjudication of disputes affecting the interests of both Indians and
non-Indians which arise on the reservation." R.J. Williams Co. v. Fort Belknap Housing Auth., 719
F.2d 979 (9th Cir. 1983).
91. W. CANBY, supra note 69 at 144.
92. See, e.g., Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317 (1952). The North Dakota
Supreme Court has a very different view. In Three Affiliated Tribes of the Fort Berthold Reservation v.
Wold Engineering P.C., 321 N.W.2d 510 (N.D. 1982), cert. granted, 103 S. Ct. 1872 (1983), argued
(Nov. 29, 1983). The North Dakota Supreme Court found no state court jurisdiction to hear a claim by
an Indian tribe against a non-Indian based on a civil cause of action arising on the reservation. North
Dakota, like Montana, is a disclaimer state.
19841
REGULATORY JURISDICTION
when the defendant is a non-Indian and the claim arises on a reservation.
This is consistent with the Iron Bearrationale when the tribal court has not
exercised jurisdiction.
V.
REGULATORY JURISDICTION
Consideration of adjudicatory jurisdiction is relevant in the determination of regulatory jurisdiction because the courts apply the rationale
from both criminal and civil cases to regulatory jurisdiction questions. If
the rationale of the courts were represented as a Venn diagram, it would be
a large circle representing regulatory jurisdiction considerations with two
intersecting circles inside representing civil and criminal jurisdiction
considerations.
Regulatory jurisdiction, like adjudicatory jurisdiction, is dependent
upon person and situs. As with criminal and civil jurisdiction, the person is
either a member Indian or a non-member which includes non-Indian and
non-member Indians. For the sake of simplicity "non-Indian" will be used
in this section to include non-Indians as well as non-member Indians.9 3
Situs in the adjudicatory questions is either on or off the reservation. With
respect to regulation, situs is the actual physical area on which certain
activities are regulated. As discussed earlier, "on the reservation" is
divided into Indian land and non-Indian land.
The state regulates activities off the reservation no matter who is the
party. The tribe has exclusive regulatory jurisdiction, limited only by
Congress, 94 over its members and over Indian land. This regulatory power,
consistent with the tribe's semi-sovereign status,95 has been held to include
the power to regulate non-Indians. A tribe may regulate through taxation,
licensing, or other means the activities of non-members who enter
consensual relations with the tribe or its members.96 The tribe, for
example, may impose a severance tax on oil and gas produced on tribal
trust property even when the producer is a non-Indian.9 7 A tribe may also
retain inherent power to exercise civil authority over the conduct of nonIndians on non-trust land. 8 In a recent landmark decision the Ninth
Circuit held that tribal power to regulate carries with it the power to
enforce the regulation. 9
93. The distinction between Indians and member-Indians was clearly expressed in Washington
v. Confederated Tribes of Colville Indians, 447 U.S. 134, 152 (1980).
94.
95.
96.
97.
98.
County,
99.
25 U.S.C. § 476 (1976).
See United States v. Wheeler, 435 U.S. 313 (1978).
Morrisv. Hitchcock, 194 U.S. 384 (1904); Buster v. Wright, 135 F. 947,950 (8th Cir. 1905).
Merrion v. Jicarilla Apache Tribe, 102 S. Ct. 894 (1982).
Fisherv. District Court, 424 U.S. 382, 386 (1976); Montana Catholic Mission v. Missoula
200 U.S. 118, 128-29 (1906); Thomas v. Gay, 169 U.S. 264, 273 (1898).
Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982), cert. denied, 103 S. Ct. 293 (1982): "To
PUBLIC LAND LAW REVIEW
[Vol. 5
States have no power to tax Indian trust lands either held for the tribe
or an individual."' 0 Also, states have no power to tax property held in fee by
a tribal member when its situs is on the tribe's reservation.' 0 ' These
restrictions on state power are reinforced by Montana's disclaimer. 102
States, in addition, cannot tax the income of tribal members if the income is
earned on the tribe's reservation. 10 3
However, non-members, both non-Indian and non-member Indians,
residing on a reservation are not exempt from state taxation. 0 4 The power
of states to tax non-members includes the power to tax income earned on
the reservation' 0 5 as well as real property located on the reservation.loe
Both the state and the tribe have power to tax non-Indians doing
business with a tribe or with tribal members on the reservation. 10 7 Indeed
both the state and the tribe claim jurisdiction to regulate non-trust land on
the reservation as well as non-Indians who engage in activity on the
reservation. On a case-by-case basis the courts determine whether jurisdiction is concurrent (with the most restrictive controlling in areas of conflict)
or whether one governmental entity should be allowed exclusive
jurisdiction.
Because so much land on Montana's reservations is non-Indian land
and because development of mineral resources likely will be accomplished
by, or at least in conjunction with, non-Indians, both state and tribal
regulations will surely be applied. Developers, as well as both governments,
will need to know when one government has exclusive jurisdiction. This will
be especially important when the tribal and state regulations are in conflict.
Regulation of resource development includes both taxation, e.g.,
severance and gross proceeds, and the actual control of the development,
hold that Indian tribes cannot exercise civil jurisdiction over non-Indians would . . . reduce to a
nullity the Supreme Court's repeated assertion that Indian tribes retain attributes of sovereignty over
their territory, not just their members."
100. The Kansas Indians, 72 U.S. (5 Wall) 737 (1867).
101. Bryan v. Itasca County, 426 U.S. 373 (1976); Moe v. Confederated Salish and Kootenai
Tribes, 425 U.S. 463 (1976).
102. Montana's 1889 disclaimer, see text accompanying notes 62-63, indicated that Montana
had no power to tax Indian held lands unless two conditions were present. First, the Indian must have
"severed his tribal relations" and, second, the land must have been taken out of trust. 25 Stat. 676.
This
provision was carried forward into Montana's 1972 Constitution. See text accompanying note 64.
MONT. CONST.art. I. It follows then, that land held in fee by a tribal member is not taxable by the state
because the first prong of the test is not met.
103. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973).
104. Washington v. Confederated Tribe of the Colville Indian Reservation, 447 U.S. 134, 15657 (1980).
105. Kahn v. Arizona State Tax Comm'n, 16 Ariz. App. 17, 490 P.2d 846 (1971), appeal
dismissed, 411 U.S. 941 (1973).
106. Utah & Northern Ry. v. Fisher, 116 U.S. 28 (1885); Thomas v. Gay, 69 U.S. 264 (1898).
107. Washington v. Confederated Tribe of the Colville Indian Reservation, 447 U.S. 134, 15657 (1980).
1984]
REGULATORY JURISDICTION
e.g., licensing, environmental protection regulations, and lease conditions.
The courts have set out the criteria for determining when regulatory
jurisdiction should be concurrent or exclusive. Because the courts make no
distinction between the kinds of regulation, all types of regulations,
including taxation, will be lumped together in the delineation of the court's
analysis.
The discussion that follows will set out court considerations when
determining tribal regulatory jurisdiction over non-Indians. Criteria for
state regulatory jurisdiction over non-Indians on reservations will be
similarly examined. The final section will present the courts' rationale for
allowing exclusive jurisdiction.
A.
Court Considerationsin Determining Tribal Regulatory
Jurisdiction Over Non-Indians
1. Inherent Tribal Sovereignty
The Supreme Court has stated that although the tribes have been
divested of criminal jurisdiction over non-Indians by necessary implication,108 civil regulatory power has not been likewise divested. 10 9 "To be
sure, Indian tribes retain inherent sovereign power to exercise some forms
of civil jurisdiction over non-Indians on their reservations, even on nonIndian fee lands." 110
However there are situations in which the sovereign power of the tribe
would be diminished such that the tribe would be precluded from
regulation in a particular area. A clear statement of the circumstances
which would divest a tribe of the power to regulate non-Indians was
compiled by the Tenth Circuit.
When faced with the question of whether the Jicarilla Apache Tribe
had jurisdiction to levy a severance tax on oil and gas produced by nonIndian lessees on trust lands, the Tenth Circuit considered the tribe's
regulatory powers which are an attribute of sovereignty., 1 First determining that inherent tribal sovereignty extends to both members and territory,
the Tenth Circuit acknowledged the limitations on tribal sovereignty.
Citing two Supreme Court cases which considered criminal jurisdiction,
the court found three circumstances which would limit a tribe's sovereign
power: (1) if the powers of self-government were voluntarily relinquished
by treaty; (2) if Congress in the exercise of its plenary authority over tribes
108.
United States v. Wheeler, 435 U.S. 313 (1978).
109.
Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134
(1980).
110. Montana v. United States, 540 U.S. 544, 565 (1980).
111.
Merrion v. Jicarilli Apache Tribe, 617 F.2d 537 (10th Cir. 1980).
PUBLIC LAND LAW REVIEW
[Vol. 5
divested the tribe of the power; or (3) if the exercise of the power would be
inconsistent with the superior interests of the United States as a sovereign
nation.11
The presence of any one of these three conditions would preclude the
tribe from exercising jurisdiction. This finding must be made on a case-bycase basis, determined by the relevant treaties and federal laws. The court
would have to ascertain whether the tribe had been divested of the precise
power required for jurisdiction over non-Indians in the specific area of
regulation at issue.
In making the determination of whether either treaties or acts of
Congress divested the tribe of power, the courts construe both liberally,
with doubtful expressions being resolved in favor of the Indians." 3 The
statute or treaty must on its face preclude tribal regulation, or the
legislative history must show an express or implied congressional intent to
do so.1 4
The courts have read the third condition quite narrowly. Only three
areas have been identified. A tribe may not: convey trust land without the
consent of the federal government; deal directly with foreign nations; or
exercise criminal jurisdiction over non-Indians.11 5 The Supreme Court has
also pointed out an important distinction: "[1]t must be remembered that
tribal sovereignty is dependent on, and subordinate to, only the Federal
Government, not the State."11
2.
General Tribal Regulatory Jurisdiction Over Non-Indians
The general areas of tribal regulatory jurisdiction over non-Indians
have been delineated by the Supreme Court. Absent any of the three
situations discussed above, the tribe will have jurisdiction in these areas.
The areas are lumped into two categories: the regulation of non-Indians
doing business on the reservation; and the regulation of non-Indians whose
activities impact tribal self-government.
The Montana v. United States 17 court described tribal power as
112.
Id. at 541 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-09 (1978));
Wheeler v. United States, 435 U.S. at 313, 323 (1978).
113. Bryan v. Itasca County, 426 U.S. 373, 392 (1976) (quoting, Alaska Pacific Fisheries v.
United States, 248 U.S. 78, 89 (1918)).
114. See, e.g., Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 547 (1980); White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 143-44 (1980).
115. Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 541 (1980) (citing Johnson v. McIntosh,
21 U.S. (8 Wheat) 543 (1823)); Oliphant v. Suquanish Indian Tribe, 435 U.S. 191 (1978); The
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
116. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154
(1980).
117. Montana v. United States, 450 U.S. 544, 565-566 (1980).
REGULATORY JURISDICTION
1984]
follows: "A tribe may regulate, through taxation, licensing, or other means
the activities of non-members who enter consensual relationship with the
tribe or its members, through commercial dealings, contracts, leases, or
other arrangements
...
"
A tribe may also retain inherent power to
exercise civil authority over the conduct of non-Indians on non-Indian
lands within its reservation when the conduct threatens or has some direct
effect on the political integrity, the economic security, or the health and
welfare of the tribe.
In addition, the courts have acknowledged that the power of taxation
is "esEential to the very existence of self-government, is an attribute of
sovereignty and extends generally to all that is within that government's
territorial jurisdiction."11 This is reinforced by the position of the
Department of Interior: "Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. . ..
[T] his
power may be exercised over members of the tribe and over non-members
g119
The power of the tribe to regulate is based oiq sovereignty, drawn from
both the power to tax and the power to exclude non-Indians, and is not
derived from the consent of those being regulated.120 Being so derived, a
tribal regulation can not be overturned because the person being regulated
has not consented to the regulation. 21 This is especially important when a
non-Indian is being regulated by a tribal government because typically,
even if the non-Indian is a resident of the reservation, he has no say in tribal
government. Participation in tribal government is usually limited to tribal
members.
B. Court Considerationsin Determining State Regulatory
Authority Over Non-Indians On a Reservation
1. The Infringement Test
The courts' considerations are derived from and are expansions of the
Williams infringement test. The "absent acts of Congress" aspect has
expanded to include federal policy and pervasive federal schemes.1 22 The
118.
Maryland,
119.
120.
Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 591 (1980) (quoting, McCulloch v.
17 U.S. (4 Wheat) 316, 428-29 (1819)).
Powers of Indian Tribes, 55 I.D. 14, 46 (1934).
Merrion v. Jicarilla Apaghe Tribe, 102 S. Ct. 894, 906 (1982): "Whatever place consent
may have in contractual matters and in the creation of democratic governments, it has little if any role
in measuring the validity of an exercise of legitimate sovereign authority."
121.
122.
See, e.g., Cardin v. De La Cruz, 671 F.2d 363, 367 (9th Cir. 1982).
See, e.g., New Mexico v. Mescalero Apache Tribe, 103 S. Ct. 2378 (1983); Rice v. Rehner,
103 S. Ct. 3291 (1983) (a state can require an Indian trader who is federally licensed to obtain a state
liquor license); Crow Tribe of Indians v. Montana, 650 F.2d 1104 (9th Cir. 1981), cert. denied, 103 S.
PUBLIC LAND LAW REVIEW
[Vol. 5
"infringement on tribal self government" aspect, when applied to regulation also includes a consideration of federal policy. In the case of civil
adjudicatory jurisdiction, if the state assumption of jurisdiction would
violate either prong of the test, state jurisdiction would be precluded.
However, with regulatory jurisdiction even if only one of the two prongs is
violated, the state's jurisdiction may prevail if the state can show that it has
sufficient state interest in the particular regulation. 12 3
2.
Preemption of State Jurisdiction
A state is without jurisdiction if its authority is preempted by
traditional principles of preemption. Because of the unique federal/tribal
relationship, the courts have chosen to not limit preemption analysis in the
context of Indian law to the traditional notions of preemption. Preemption
in the context of Indian law does not require an express congressional
statement.1 2 4 The state regulation is preempted if the federal scheme is so
pervasive that there is no room for state involvement. "Pervasive federal
scheme" embraces federal regulation of resource development and can
even be as minimal as a federal licensing requirement.' 2 5
The courts' preemption analysis has all but swallowed the infringement on tribal self-government concepts. Tribal and federal interests are
considered as one and the same. In the preemption analysis, heavy weight is
given to the federal commitment to tribal sovereignty and self-determination. In fact the Supreme Court has acknowledged what it calls "Congress'
overriding goal" to encourage "tribal self sufficiency and economic
development." 1 6 State authority is precluded when it "stands as an
obstacle to the accomplishment of the full purposes and objectives of
Congress.127
Ct. 230 (1982); White Mountain Apache Tribe v. Bracker, 443 U.S. 136 (1980).
123. See, e.g., New Mexico v. Mescalero Apache Tribe, 103 S. Ct. 2378, 2390 (1983); Crow
Tribe of Indians v. Montana, 650 F.2d 1104, 1113-14 (1981), cert. denied, 103 S. Ct. 230 (1982);
White Mountain Apache Tribe v. Bracker, 443 U.S. 136, 144-45 (1980).
124. White Mountain Apache Tribe v. Bracker, 448 U.S. 135, 144 (1980) (citing Warren
Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685 (1965)).
125. See, e.g., Crow Tribe of Indians v. Montana, 650 F.2d 1104, 1111- 12 (1981), cert. denied,
103 S. Ct. 230 (1982) (Montana's proceeds and severance tax will be preempted if the tribe can show
that the taxes substantially thwart the policies of the Mineral Leasing Act of 1938, 25 U.S.C. § 396a-d
(1976), which include revitalization of tribal government and tribal economic development.); White
Mountain Apache Tribe v. Bracker, 443 U.S. 136, 148 (1980) (State tax on a motor carrier license
based on gross receipts was preempted because of federal regulation of tribal harvesting on the
reservation.); Central Machinery Co., v. Arizona State Tax Comm'n, 448 U.S. 160 (1980) (Arizona
sales tax was preempted because persons doing business on the reservation are required to have a
federal license.).
126. New Mexico v. Mescalero Apache Tribe, 103 S. Ct. 2378, 2386-87 (1983) (quoting White
Mountain Apache Tribe v. Bracker, 443 U.S. 136, 143 (1980)).
127. Ramah Navaho School Board, Inc.v. Bureau of Revenue of New Mexico, 102 S. Ct. 3394,
REGULATORY JURISDICTION
1984]
In order to preclude state regulation, then, the Court must make the
threshold determination that the regulation is preempted by either explicit
federal law or by a pervasive federal scheme. A finding of preemption
under the pervasive federal scheme analysis, however, is not determinative.
Cautious not to preempt legitimate state regulation, the courts make an
additional inquiry when preemption is found using this non-traditional,
broader scheme. The courts determine whether the state interest at stake
justifies the assertion of state authority. 128 If the state's regulation is found
to be justified, the state retains jurisdiction.
Whether the state regulation is justified is determined by balancing
the state interests in the regulation against the tribal interest in not having
the regulation. A state has a legitimate governmental interest, for example,
in raising revenues when the tax is directed at off reservation value and
when the taxpayer is the recipient of state services.12 However, the state's
mere "interest in acquiring additional revenues is weak in comparison with
the tribe's right to the bounty from its own land" and would not in that
circumstance justify state imposition of a tax. 3 0
C.
Court Considerations in Determining When Regulation Should
"BeExclusive: The Balancing Test
To determine if tribal or state regulations should be exclusive the
courts make a particularized inquiry into the nature of the state and tribal
interests at stake.3 1 Two conditions must be present before the courts will
allow exclusive jurisdiction. First, the governmental interests in the
regulation must be disparate. One government must have a strong interest
while the other's interest is weak. Second, the concurrent application of the
regulations must result in an adverse affect on the regulation by the
government with the strong interest. 3 2 This adverse affect may be direct,
e.g., make the hunting and fishing regulatory scheme a nullity1 38 or
3402 (1982) (quoting Hines v. Davidowitz, 312 U.S. 42 (1941)).
128. See supra note 123.
129.
Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 156-
57 (1980). "[S]ince federal legislation has left theState with no duties or responsibilities respecting the
reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of
levying this tax." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 152 (1980) (quoting
Warren Trading Post Co. v. Arizona Tax Comrnm'n, 380 U.S. 685, 691 (1965)).
130. Crow Tribe of Indians v. Montana, 650 F.2d 1104, 1117-23 (9th Cir. 1981), cerl. denied,
103 S. Ct. 230 (1982). See infra note 134. See also, White Mountain Apache Tribe v. Bracker, 448
U.S. 136 (1980).
131.
132.
133.
Bracker, 448 U.S. at 145.
Id.
New Mexico v. Mescalero Apache Tribe, 103 S. Ct. 2378, 2388 (1983). Because of the
decline in the sale of timber the Mescalero Apache Tribe decided to create another source of tribal
income. In conjunction with the federal government, the iribe built up its fishing and hunting resources
PUBLIC LAND LAW REVIEW
[Vol. 5
indirect, e.g., force the tribe to choose between imposing its tax, thereby
discouraging coal mining and or losing lease money; or foregoing tax
revenues.l1e
A tribe has a strong interest in taxation if the value marketed is
generated on the reservation by activities in which the tribe has a
significant interest, or when the tribe is raising revenues for essential
governmental services and the taxpayer is a recipient of those services. l3 5 A
tribe has a strong interest in regulation of its natural resources when it has
committed substantial time and resources to their development as a source
37
of tribal income,'3 " or the resource is a mineral resource.1
A tribe has a weak interest in the regulation if it bears no clear
relationship to tribal self government or internal relations.13 8 Also, the
tribe's interest is weak if it has traditionally accommodated itself to the
state's nearly exclusive regulation in that area. 1 9
as a result of a comprehensive fish and game management program. It then raised revenues by the sale
of hunting and fishing licenses to non-members.
The rub came when the State of New Mexico, in which the reservation lies, began enforcing its
hunting and fishing regulations against non-Indians leaving the reservation. The hunting and fishing
regulations of the tribe and the state were not coordinated. The tribe allowed hunting when the state
prohibited it.
The Court reasoned that to allow the concurrent application of the two regulatory schemes would
essentially eviscerate the tribes scheme. Because the state's scheme is more restrictive (with concurrent
application of regulations, the most restrictive prevails), it would essentially supplant tribal regulation.
It is significant to note that most of the reservation is owned in fee by non-Indians.
134. CrowTribeofIndians v. Montana, 650 F.2d 1104,1116(1981), cert. denied, 103 S. Ct. 230
(1982). Montana imposed a severance and a gross proceeds tax on all coal mined and sold in Montana.
This included coal held in trust for the Crow Tribe both on and off the reservation. The main lessee of
the tribe's coal reserves in 1975 paid $31 million to the State of Montana but only $8 million to the tribe
in royalties. The next year, the tribe enacted its own coal tax code and sought a declaratory judgment as
to the validity of the state's tax.
Although normally both governmental entities are allowed to impose similar taxes, see
Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) (tax on
cigarettes), in this case the Ninth Circuit Court felt that the burden may be too great for the tribe.
Montana's tax, it stated, could, as a practical matter, force the tribe to choose between foregoing its own
tax revenues or impose its tax on the lessee and discourage coal mining. This would result in decreased
royalties as well as diminished revenues from the tax.
135. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 155,
156-157 (1980).
136. See supra note 133. See also White Mountain Apache Tribe v. Barker, 443 U.S. 136
(1980) (timber resource).
137. See supra note 134.
138. Montana v. United States, 450 U.S. 544, 564 (1981). See infra note 139.
139. Id. The Crow Tribe of Indians decided to prohibit non-Indian hunting or fishing on the
reservation. The Big Horn River which flows through the reservation was a well known trout fishing
river and had been stocked by the State of Montana since 1920.
After determining that the title of the bed of the river was held by the State of Montana, the
Supreme Court held that the state has exclusive jurisdiction over hunting and fishing by non-Indians on
fee land on the reservation. It concluded this because the "[t]ribe has traditionally accommodated itself
to the State's 'near exclusive' regulation of hunting and fishing on fee lands within the reservation."
1984]
REGULATORY JURISDICTION
As stated above, the state, as with the tribe, has a strong interest in
taxation if the tax is directed at off reservation value and the taxpayer is the
recipient of state services. "1 0 The state has a weak interest in the mere
generation of revenues.""
VI.
CONCLUSION
The extent of each tribe's enterprising activities will not only
determine its own regulations, but will also delimit the state regulations
which will be allowed to impact on each reservation. Clearly, the tribes
have power to regulate the development of resources on trust land. Equally
clear, tribes may regulate through licensing, taxing and other means, nonIndians who enter a consensual relationship with the tribe to develop the
tribe's natural resources.
Tribes may regulate the development of resources on non-Indian land
on the reservation to the extent that the regulation protects the health and
welfare of the tribe.142 Tribes may also regulate activities on non-Indian8
land in order to protect tribal economic security and political integrity."1
Tribal regulations on non-Indian land can range from environmental
protection," to zoning, 145 to sanitary standards . 4 However, a tribe may
only levy a tax on non-Indians if the revenue is used to provide a service of
which the non-Indian taxpayer is a recipient."
A state is certainly preempted from regulating non-Indians in the
development of tribal resources if the federal government has specifically
excluded state involvement. Absent this direct preemption, state taxes will
attach to non-Indian developers of tribal mineral resources unless the tribe
has a conflicting taxing scheme in place. The state may regulate nonIndians hunting and fishing on non-Indian land unless the tribe has a
comprehensive management program designed to develop its hunting and
fishing resources. Likewise, states may be allowed to regulate resource
140. See supra note 129 and accompanying text.
141. See supra note 130 and accompanying text.
142. Montana v. United States, 450 U.S. 544,566 (1981). See, e.g. Cardin v. De La Cruz, 671
F.2d 363 (9th Cir. 1982), cert. denied, 103 S.Ct. 293 (1982) (tribal building health and safety code
upheld); Confederated Salish and Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir. 1982), cert.
denied, 103 S.Ct. 314 (1982) (tribal regulation of docks on Flathead Lake upheld).
143. Montana, 450 U.S. at 566. See, e.g., Mescalero Apache Tribe v. New Mexico, 103 S. Ct.
2378 (1983) (not only upheld tribal hunting and fishing recreation of non-Indians but precluded state
regulation thereof on the reservation).
144.
(required
145.
146.
(1982).
147.
See, e.g., Lummi Indian Tribe v. Hallauer, No. C79-682R (W.D. Wash. Feb. 1982)
non-Indians to hook up to tribal sewer).
See, e.g., Knight v. Shoshone and Arapahoe Indian Tribes, 670 F.2d 900 (loth Cir. 1982).
See, e.g., Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982), cert. denied, 103 S.Ct. 293
Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.).
170
PUBLIC LAND LAW REVIEW
[Vol. 5
development on non-Indian land on the reservation unless the tribe has a
comprehensive regulatory scheme applicable to that non-Indian land.